§ 1 General Information, Scope
1. Our sale, delivery, and payment conditions apply to all of our orders, deliveries, and other services. Our sale, delivery, and payment conditions also apply to all future contracts with customers/buyers in addition to any future supplies/goods we deliver and other services. Our sale, delivery, and payment conditions apply to their corresponding services. While delivered factory products need to be accepted upon delivery, work performed and supply of services need approval upon completion.
2. Our sale, deliver, and payment conditions apply exclusively and only to companies in accordance with § 310 Section 1 of the German civil code (Bürgerliches Gesetzbuch / BGB). Buyer terms which conflict with or deviate from these sale, delivery, and payment conditions will be refuted.
§ 2 Contract Signing
1. All of our offers are subject to change. The information shown in our listing statements, catalogues, brochures, price lists, drawings, and other similar documents which contain information about product dimensions, weights, performance, or material was produced through careful examination, but is not binding, unless it is expressly stated that it is binding. The same applies to construction information and recommendations. We reserve the right to make changes based on any future technical developments and advancements. The drawings, sample files, and documents which we manufacture remain our property; they may not be made accessible to third parties without our consent. In this case we refer to our valid Copyrights.
2. The contractually owed properties of the bought goods depend solely on the product description and any written agreements. Any ideas expressed only from the side of the customer/buyer, as well as any advertisements and other public statements made by us or one of our agents will be disregarded.
3. When carrying out an order the product will always remain our property, even if we charge for part of the costs, models, tools, and other equipment.
4. Orders, changes in the contract, and supplements, in addition to ancillary agreements, require a written form. Orders made over the phone or through other types of communication count as completed when the goods have been sent or handed over with their bill.
§ 3 Prices, Payment
1. As long as no special agreement has been made, the prices of the goods will be the current prices listed in the catalogue and price lists in euros (EUR) plus any applicable VAT. Current price refers to the price on the day the order was received.
2. The net payment must be completed within 30 days, based on the date on the invoice, unless some other agreement was made in advance.
3. If payment is received within 10 days of the invoice and delivery date, we will give you a 2% discount. Usually the deduction of a discount requires a special written agreement.
4. We reserve the right to demand cash on delivery or prepayment when dealing with a new business connection or if there is unfavourable information regarding the customer/buyer.
5. Counterclaims of the customer/buyer entitle him or her only to offset or retain payments, if they are legally established or undisputed.
§ 4 Delivery, Delivery Time
1. The delivery costs do not include packaging and transport.
2. Our delivery to you is subject to timely and correct delivery from our warehouse.
3. All delivery time information is approximate and not binding, in addition to being dependent on the fulfillment of the contractual obligations of the customer/buyer in advance. Delivery dates and times are only binding if they have been confirmed by us in writing. The delivery dates and times then refer to the time of dispatch or the notification that the package is ready to be shipped, this date becoming the start date of the order confirmation. This however does not happen before complete clarification of all details of the contract, the provision of the customer/buyer documents, permits, or approvals, and delivery of the agreed upon down payment.
4. A delay/default in delivery can occur when the customer/buyer has a monetary liability in arrears.
5. We have the right to make partial deliveries, to a reasonable extent.
6. The delivery time can take longer in the case of force majeure including labour disputes, especially strikes and lockout, any type of transport and operational disruptions, as well as the
occurrence of unforeseen obstacles which are beyond our control. This also applies if similar circumstances affect our subcontractors. If the above mentioned circumstances make delivery or
services impossible, we are herewith released from the delivery obligation.
7. If the customer/buyer incurs any damage due to a delayed delivery which is due to a fault of ours or that of our subcontractors, the customer/buyer is entitled to demand compensation for the delay, with the exclusion of making further claims in the future. The charge the customer/buyer can demand for each full week of delay is, but with a total no greater than 5%, based on the value of the purchased item, which could not be used in a timely fashion and in accordance with the contract. Unlimited liability of us, from a breach of warranty as well as for intent and gross negligence, remains unaffected. Further claims arising from delay in delivery shall be governed exclusively based on § 9.
8. If delivery is delayed at the request of the customer/buyer, we are entitled to demand compensation for any additional expenses which we may incur. The risk of accidental loss or
accidental deterioration of the items default, in this case and at the time of acceptance delay, to the customer/buyer. After setting an initial deadline for a reasonable period of time and the fruitless expiration of the agreed upon deadline, we are entitled to otherwise dispose of the purchased item and to give the customer/buyer and extension on their delivery deadline.
§ 5 Shipping, transfer of risk, and package receipt
1. The goods are delivered at the risk of the customer/buyer and shall pass to the customer/buyer with the sending of the delivery items or handing over of the delivery items to the transporting company. This also applies in the case of partial deliveries, or if we have taken over/on other services such as shipping costs or commissioning.
2. The dispatch route and means of delivery are left at our discretion, unless otherwise agreed upon.
3. Accepting products with minor defects does not refute the rights of the customer/buyer as given in § 8.
§ 6 Retention of Title
1. Until the complete satisfaction of all claims from the business relationship have been met, the delivered items will remain our property. The customer/buyer has to properly store and insure the purchased item/goods. In case of delayed payment, the customer/buyer is obligated, at our request, to return the purchased and already delivered goods/items to us, without us having to first withdraw from the contract. This also applies if some or all of our claims have been included in an ongoing account and the balance is drawn and recognised. In case of seizure, foreclosure, or other interventions by third parties, the customer/buyer has to notify us immediately and supply the necessary documents for us to protect our property rights.
2. The transfer of the equivalent (monetary) values for the sold item applies as the receipt of payment to us.
3. Any treatment and processing of the sold items by the customer/buyer is always done by us, without incurring any obligations for us, and remains our property. This also applies if the reserved goods/sold items are processed to form a new object.
4. The sold items are, in so far as they are connected to other objects of the customer/buyer or of an item belonging to a third party, usually a separate, removable, and therefore considered to be, in a legal capacity, special means. If the goods are connected to other, not belonging to the customer/buyer, items, or if through this the special legal capacity of the original item is lost, we will acquire joint ownership of the new item in proportion of the value of our goods to that of the other combined objects at the time of attachment. If the connection/attachment is made in such a way that the item of the customer/buyer is regarded as the main thing/item, then it is agreed that the customer/buyer transfers proportional joint ownership to us. The customer/buyer trust-holds the thus resulting sole or co-ownership for us. The same rules apply to our co-ownership as for the items delivered by us under reservation.
5. The customer/buyer is entitled to resale the conditional foods in the ordinary course of business. Other disposals/rights, in particular pledging and the transfer of ownership are not permitted to be done by the customer/buyer. The customer/buyer is obligated to resell the goods only under extended and expanded retention of the title, if the reserved goods are not paid by the third party purchaser immediately. The right to resell lapses in case of default by the customer/buyer.
6. The customer/buyer hereby removes from us all claims accruing to him from the resale to another buyer, regardless of whether the reserved goods/sold items are resold without or after
processing/use. It is forbidden for the original/initial/primary customer/buyer to make agreements with their customer that might exclude or impair our rights in any way. The primary customer/buyer may not, in particular, enter into any agreement which makes or impairs the assignment of future claims to us naught. The primary customer/buyer is still authorised to collect claims against/assigned to us even after selling/transferring goods they bought from us. Our authority to collect the claims ourselves remains unaffected by this. However, we commit ourselves to not simply collect claims as long as the customer/buyer meets their payment obligations. We may require that the customer/buyer notifies us of any assigned claims and their debtors, provide all information required for collection, hand over the relevant documents, and inform the debtors of the assignment. If the originally sold items are resold with the addition of other objects that do not belong to us, then the monetary claim of the customer/buyer against the second buyer, then the original delivery price between us and the primary customer/buyer becomes void.
7. Under the above listed provision, we are obligated to release the securities due to us at our discretion, upon request of the customer/buyer when the value of the secured claims, in so far as they have not yet been settled by more than 20%.
§ 7 Investigation and complaints
Upon receipt, the customer/buyer shall immediately inspect our deliveries for the presence of any flaws. Any potentially existing visible defects found during an appropriate/reasonable investigation must be reported no later than 10 days after receiving the delivery, and any hidden defects reported, in writing, immediately upon discovery.
§ 8 Warranty rights of the customer/buyer
After delivery for material and legal defects, the customer/buyer is subject to exclusion from further claims.
§ 9 Rights following deficiencies/defects:
1. With regards to parts which proved not to be defect ahead of the risks involved with transfer, and which as a result of transfer were damaged, we have the option to either eliminate the defect, or to deliver replacement items/goods which are free from/of defects. The identification of such defects must be immediately reported to us in writing. The obligatory examination and notification also includes operating and assembly instructions. The replaced parts will become our property.
2. Pursuant of the objectives, we deem necessary to correct deficiencies and deliver replacement parts that are free of defects, the customer/buyer, following an agreement with us, must give us sufficient time and opportunity to remedy the situation. Otherwise we are released from liability resulting from any consequences. Only in urgent cases of danger to operational safety or to prevent excessive damage, about which we must be informed immediately, does the customer/buyer have the right to eliminate the defect by themselves or through a third party, and to then demand reimbursement of the necessary expenses.
3. The costs incurred by the removal of defects, including the delivery of the defect-free goods will be covered by us, including shipping, installation, and the involved manual labour, if the complaint proves to be justified, and the cost of the manufacturing of the individual replacement part is reasonable and possible. Claims by customer/buyer to remedy deficiencies or to have the defect-free replacement items delivered free of charge, in particular with regards to transport, labour, and material costs, are excluded if the expenses increase because the replacement item is to be delivered to a place other than to the place where the main office of the buyer is located, unless the transport corresponds to the intended use of the item.
4. The customer/buyer has, under statutory right, the right to rescind the contract, if we – under the consideration of legal exceptions – pass a reasonable time period for subsequent performance due to a defect. If there is just a minor defect, the customer/buyer is only entitled to a reduction of the price agreed upon in the contract. In other respects/apart from that, the right to reduce the price agreed upon in the contract shall be excluded.
5. No warranty claims can be made in the following situations, provided that we are not responsible for them: unsuitable or improper use, faulty/incorrect installation or commissioning done by the customer/buyer or by a third party, natural wear and tear/deterioration, incorrect or negligent handling, improper maintenance, using unsuitable resources, chemical, electrochemical, or electrical influences.
6. If a defect is improperly corrected by the customer/buyer or a third party, there is no liability on our part for the consequences arising therefrom. The same applies to any changes made without our consent on the purchased item.
B. Legal Infringements
7. If the use of the delivered item causes a violation of intellectual property rights or copyrights in Germany, we will, in principle and at our expense, give/provide the customer/buyer the right to further use or modify the delivery/purchased item in a reasonable, for the customer/buyer, manner such that the copyright infringement no longer exists. If this is not possible on commercially reasonable terms or within a reasonable time period, the customer/buyer is entitled to cancel the contract. Under these conditions, we also have the right to cancel the contract. Additionally, we will indemnify the customer/buyer from undisputed or legally established claims by the relevant copyright holders.
8. The obligations on our part, mentioned in § 8 (7) are final for the event of patent or Copyright infringement. They exist only if, - the customer/buyer informs us immediately of asserted property or copyright infringement,
- the customer/buyer supports us, to a reasonable extent, in defending the asserted claims or enables us to carry out the modification measures according to § 8 (7), - the right to all defence measures, including extrajudicial arrangements is reserved, - the legal infringement is not due to an instruction given by the customer/buyer, and - that the legal infringement was not caused by the fact that the customer/buyer had the delivered item arbitrarily modified or used in a non-contractual manner.
§ 9 Damage Claims
1. Damage claims by the customer/buyer against us are excluded irrespective of the legal reason, unless we, our legal representatives, or our agents have acted willfully or through gross negligence.
2. We, our legal representative or agents, are also liable for slight negligence claims for damages from the breach of obligations, arising from the nature of the contract, and which are of particular importance for the purpose of the contract, as well as for damages resulting from injury to life, body, and health.
3. If we are liable on the merits, the claim for damages is limited to foreseeable damage, unless that harm triggering event has been caused by us, our legal representatives, or gross negligence or intent by our agents, or in the case that life, limb, or health have been injured.
4. Under the Product Liability Act, regardless if we were at fault, a potential liability remains on our side with regards to a fraudulent concealment of a defect, from the assumption of a guarantee, or a procurement risk.
§ 10 Limitations
All claims of the customers/buyers – for any legal reasons whatsoever – expire 12 months after delivery of purchased item. The unlimited liability by us for damages arising from a breach of guarantee or from injury to life, limb, or health, for willful or fraudulent or grossly negligent conduct, and for claims under the Product Liability Act remains unaffected.
§ 11 Technical Changes, Design Changes
We explicitly reserve the right to make technical changes, including design changes, on our products. We are however not required to implement these changes to products which have already been delivered. The customer/buyer cannot derive any legal rights out of this.
§ 12 Applicable law, Place of Performance (enactment), Jurisdiction
1. All contractual relations between us and our customers/buyers are subject to the laws of the Federal Republic of Germany, under exclusion of the UN Convention on the International Sale of Goods (CISG).
2. In cases of doubt, the German version of our sales, delivery, and payment conditions prevails.
3. The place of where all rights and obligations arising from contractual relationships are implemented is Fellbach, Germany.
4. The jurisdictional court of our head office is responsible for handling any disputes resulting from contractual relationships. We have however chosen, that we have the right to call the court for the head office of our customers/buyers.
5. Any electronic data processing we work with is done with consideration for the German Federal Data Protection Act (Bundesdatenschutzgesetzes).
Fellbach, June 2010